KALPANA ROY Vs. NEW INDIA ASSURANCE COMPANY LTD

JUDGEMENT

(1.) The Judgment of the Court was delivered by : Ray, J. - This appeal under Section 173 of the Motor Vehicles Act has been preferred by the claimants assailing the quantum of compensation as awarded on assuming the income of the deceased as Rs. 20/- per day though there was no material evidence to that effect in respect of the findings of the learned Tribunal below in view of the fact that the widow of the deceased deposed categorically that the income of her deceased husband was to the range of Rs. 50/- to Rs. 55/- per day working as porter in Sodepur Bazar. From the material evidence on record it appears that two witnesses were examined ; the widow and the other eye witness, a co-passenger of the vehicle. The learned Tribunal below held that there was an accident, the offending vehicle was responsible for such accident due to rash and negligent driving and that the husband of the claimant, Smt. Kalpana Ray, breathed last due to the accidental injury as suffered. The findings of the learned Tribunal on income of the deceased is under challenge. The learned Tribunal below came to the said finding only on the reason that the claimant failed to prove the income by documentary evidence. Hence the only question involved in the appeal is as to whether in the absence of any documentary evidence as a proof of income, the oral evidence would suffice if such oral evidence of the deponent is undisturbed in the cross-examination even.The point is not at all res Integra in view of the settled judgement in this field passed by the Apex Court in the case of Smt. Kushanuma Begum v. New India Insurance Company Ltd. reported in AIR 2000 SC 485 : 2000 WBLR (SC) 207, wherein the oral deposition of the witness of income of deceased even in the absence of income certificate was accepted by the Apex Court as the basis for calculating the compensation. The same principle was followed by the Apex Court in the case of Gurmit Kaurv. State of Haryana & Ors. reported in 2000 T.A.C. 203 SC. Even our Calcutta High Court, following the aforesaid judgement, in the case of Smt. Bilasini Mondal v. National Insurance Company Limited & Anr. reported in (2003)3 ACC 137 (DB) held that in the absence of documentary evidence, the oral evidence to be considered as it was not possible in many cases to submit the documentary evidence.

(2.) Having regard to such settled legal position we have no other alternative but to hold that the oral evidence so far the income of victim as deposed by the deponent, P.W. 1, which even in the cross-examination was not disturbed and/or not shaken, should be the income of the deceased to quantify compensation amount. Accordingly we hold that the income of the deceased victim was Rs. 50/- per day, i.e. Rs. 1,500/- per month before his accidental death and on that basis naturally the computation of compensation amount should follow.

(3.) It is also the settled legal position that in an application under Section 166 of the Motor Vehicles Act, different factors are required to be considered, namely, the loss of income, the loss of dependency, the pecuniary injury, loss of love and affection, loss of company, the mental agony etc. Having regard to said different factors to identify the total quantum of compensation which lead the resultant effect of those all variants, the findings and judgements of different Courts and/or Tribunal so far as quantifying the compensation, the Apex Court considered that issue as to whether by proper multiplier on multiplying the same with the income of the deceased, the compensation amount could be fixed. With that idea, the Apex Court held that the structured formula under Section 163A of the Motor Vehicles Act is a safer formula which, on principle, could be applied in the application under Section 166 of the said Act irrespective of the fact that under the statute the structured formula is applicable only in respect of the injured persons and/or victim of accident concerned who are/were within the income zone of Rs. 40,000/- and below per annum. Reliance may be placed to the judgement passed in the case of Abanti v. United Indian Insurance Company reported in (2003)2 WBLR (SC) 235.